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Broadcast flag could be on thin ice

In oral arguments today, US Court of Appeals judges voiced skepticism about …

The US Court of Appeals for the DC Circuit raised questions about the broadcast flag in court proceedings today. Informing the Federal Communications Comission that it was not in the business of selling televisions, one judge said that the FCC had overstepped its authority when it mandated that all consumer electronics devices made after July 1, 2005 be able to detect and respect the broadcast flag in digital TV broadcasts.

The judges also showed concern that letting the flag stand could open the door for other FCC regulations.

"It's never been done before," [Judge David] Sentelle said, agreeing with Judge [Harry] Edwards that the rule could set a precedent for a wide range of other new FCC regulations.

At issue is whether the FCC was within its rights to create the broadcast flag requirement without congressional approval. In the past, the FCC has required TV manufacturers to support closed-captioning and the V-chip, but both requirements came as a result of legislation, rather than a unilateral decision.

It is not definite that the court will ultimately strike down the broadcast flag. While the court was favorable to the arguments of its opponents, one judge questioned whether the Electronic Frontier Foundation, American Library Association, and other groups had the requisite legal standing to bring the matter before the court. In response, an attorney for the petitioners remarked that "the harm to us is the harm to consumers... our members are consumers."

A ruling is expected within several months.

Eric Bangeman
Eric has been using personal computers since 1980 and writing about them at Ars Technica since 2003, where he currently serves as Managing Editor. Twitter@ericbangeman